Cloud of Change v. NCR Corp.: Federal Circuit Reverses Jury Win in POS Patent Case
Cloud of Change asserted two point-of-sale software patents against NCR’s Silver® platform before Judge Albright in W.D. Texas. A 2021 jury verdict in Cloud of Change’s favour was ultimately reversed by the Federal Circuit on noninfringement grounds — a full defendant win after nearly six years of litigation.
Jury Victory Erased: How NCR Overturned a POS Patent Verdict on Appeal
Cloud of Change, LLC filed suit against NCR Corporation in the Western District of Texas on 30 August 2019, asserting infringement of U.S. Patent Nos. 9,400,640 and 10,083,012 — two patents covering cloud-based point-of-sale system architecture and software build/update methods. The accused product was NCR Silver®, a widely deployed cloud POS platform. The case was assigned to Judge Alan D. Albright, whose Waco division was at the time one of the most active patent dockets in the country.
A three-day jury trial concluded on 20 May 2021 with a unanimous verdict finding NCR liable for infringement of the asserted claims of both patents and rejecting NCR’s invalidity defences. The district court entered Final Judgment for Cloud of Change on 13 July 2021. NCR’s post-trial motions for JMOL of noninfringement and, alternatively, a new trial were denied. NCR appealed the JMOL denial to the Federal Circuit, which reversed — holding there to be no infringement of either asserted patent. On 19 August 2025, the district court vacated its prior judgment and closed the case in conformity with the Federal Circuit’s mandate.
The timeline — nearly six years from filing to closure — reflects the full appellate arc rather than a protracted district court proceeding; the jury trial itself concluded within two years of filing, consistent with Judge Albright’s accelerated scheduling. The Federal Circuit’s reversal on noninfringement, rather than invalidity, is commercially significant: both patents survive as valid and enforceable, leaving open the possibility of future enforcement against other defendants. The public record does not disclose whether a licensing resolution was considered or whether Cloud of Change intends further enforcement activity.
Filing to Judgment on the merits for Defendant in 2181 days
2,181 days — well above the ~900-day median for W.D. Texas patent cases, reflecting appellate proceedings
Federal Circuit reverses: what the ruling means for both parties
What ‘REVERSED’ means at the Federal Circuit level
A Federal Circuit reversal on JMOL of noninfringement means the appellate court found, as a matter of law, that no reasonable jury could have found infringement on the trial record. The district court’s judgment is nullified — not remanded for retrial — and the mandate directs entry of judgment for the defendant. Critically, the court did not address invalidity, so the patents themselves remain valid and enforceable.
No merits finding on invalidityNCR escapes liability — but patents remain a live risk
NCR Corporation prevailed conclusively: the prior judgment is vacated, no damages are owed, and NCR Silver® faces no injunction risk from this action. However, the Federal Circuit’s ruling was product-specific and claim-specific. Because neither patent was invalidated, NCR and the broader POS sector face continued exposure if Cloud of Change pursues enforcement against other platforms or product versions not squarely covered by the appellate noninfringement analysis.
Vacated judgment; no damagesCloud of Change loses enforcement but retains valid patents
Cloud of Change failed to secure a final damages award despite winning at the jury stage — an outcome that will likely chill near-term enforcement appetite. The patents, however, are unimpaired in validity: the Federal Circuit’s reversal rested solely on noninfringement, leaving US9400640 and US10083012 available for future assertion. Whether the claim constructions underpinning the reversal narrow the practical scope of enforcement against third parties is the key strategic question the public record leaves open.
Patents valid; enforcement curtailedPOS software sector faces clearer — but not eliminated — patent risk
The reversal narrows the infringement perimeter for cloud POS vendors adopting architectures similar to NCR Silver®, suggesting the Federal Circuit applied a restrictive claim reading. Competitors building cloud-based POS update and deployment systems should nonetheless audit their designs against the surviving claim scope: the patents are valid and their owner has demonstrated willingness to litigate to the appellate level. The outcome reinforces the value of early, product-specific FTO analysis before POS platform launches.
Cloud POS risk persistsFull party and counsel information
| Role | Name | Type | Detail |
|---|---|---|---|
| Plaintiff | Cloud of Change, LLC | Company | Patent assertion entity — holder of US9400640 and US10083012 (cloud POS software)Search in Eureka ↗ |
| Defendant | NCR, Corp. | Company | NCR Corporation — global point-of-sale hardware and software provider; maker of NCR Silver®Search in Eureka ↗ |
| Plaintiff counsel | Abelino Reyna | Attorney | Counsel for Cloud of Change, LLCSearch in Eureka ↗ |
| Plaintiff counsel | Barden Todd Patterson | Attorney | Counsel for Cloud of Change, LLCSearch in Eureka ↗ |
| Plaintiff counsel | Edgar Neil Gonzalez | Attorney | Counsel for Cloud of Change, LLCSearch in Eureka ↗ |
| Plaintiff counsel | John Allen Yates | Attorney | Counsel for Cloud of Change, LLCSearch in Eureka ↗ |
| Plaintiff counsel | John H. Barr , Jr. | Attorney | Counsel for Cloud of Change, LLCSearch in Eureka ↗ |
| Plaintiff counsel | Kyrie Kimber Cameron | Attorney | Counsel for Cloud of Change, LLCSearch in Eureka ↗ |
| Plaintiff counsel | Michael Halley Bernick | Attorney | Counsel for Cloud of Change, LLCSearch in Eureka ↗ |
| Plaintiff law firm | A Reyna Law Firm | Law Firm | Representing Cloud of Change, LLCSearch in Eureka ↗ |
| Plaintiff law firm | Jackson Walker LLP | Law Firm | Representing Cloud of Change, LLCSearch in Eureka ↗ |
| Plaintiff law firm | Meade Neese & Barr LLP | Law Firm | Representing Cloud of Change, LLCSearch in Eureka ↗ |
| Plaintiff law firm | Patterson & Sheridan, LLP | Law Firm | Representing Cloud of Change, LLCSearch in Eureka ↗ |
| Defendant counsel | Adam W. Burrowbridge | Attorney | Counsel for NCR, Corp.Search in Eureka ↗ |
| Defendant counsel | Charles E. Phipps | Attorney | Counsel for NCR, Corp.Search in Eureka ↗ |
| Defendant counsel | Charles S. Baker | Attorney | Counsel for NCR, Corp.Search in Eureka ↗ |
| Defendant counsel | Daniel G. Nguyen | Attorney | Counsel for NCR, Corp.Search in Eureka ↗ |
| Defendant counsel | Donald E. Frechette | Attorney | Counsel for NCR, Corp.Search in Eureka ↗ |
| Defendant counsel | Paul Whitfield Hughes , III | Attorney | Counsel for NCR, Corp.Search in Eureka ↗ |
| Defendant counsel | Scarlett Collings | Attorney | Counsel for NCR, Corp.Search in Eureka ↗ |
| Defendant counsel | Steven F. Meyer | Attorney | Counsel for NCR, Corp.Search in Eureka ↗ |
| Defendant law firm | Locke Lord LLP | Law Firm | Representing NCR, Corp.Search in Eureka ↗ |
| Defendant law firm | McDermott Will & Emery LLP | Law Firm | Representing NCR, Corp.Search in Eureka ↗ |
| Defendant law firm | McDermott Will & Schulte LLP | Law Firm | Representing NCR, Corp.Search in Eureka ↗ |
| Defendant law firm | Susman Godfrey LLP | Law Firm | Representing NCR, Corp.Search in Eureka ↗ |
| Defendant law firm | Troutman Pepper Locke LLP | Law Firm | Representing NCR, Corp.Search in Eureka ↗ |
| Defendant law firm | Troutman Pepper Locke, LLP (Dallas Office) | Law Firm | Representing NCR, Corp.Search in Eureka ↗ |
| Presiding judge | Judge Alan D Albright | Judge | Texas Western District CourtSearch in Eureka ↗ |
Official order — verbatim text
The Federal Circuit’s mandate — holding ‘there to be no infringement of the Asserted Patents’ — directed the district court to vacate its judgment rather than remand for further proceedings, indicating the appellate court resolved the infringement question as a matter of law with no need for retrial. Applying a de novo standard to claim construction and a substantial-evidence review to the underlying factual findings, the circuit court concluded the trial record could not support the jury’s infringement finding. Notably, the reversal is silent on invalidity: the jury’s finding that the asserted claims were not invalid stands undisturbed, preserving the patents’ legal force for future proceedings.
US9400640 & US10083012 — Cloud-Based Point-of-Sale System and Update Methods
US9,400,640 (application no. 12/012,666) and US10,083,012 (application no. 15/635,097) together cover cloud-based architectures for building, deploying, and updating point-of-sale software systems. The patents describe methods by which POS terminal software is constructed and managed from a remote server environment, a technical approach central to the SaaS-model POS platforms that have largely displaced legacy on-premise systems since the mid-2010s. The ‘012 patent’s later application date suggests it represents a continuation or development of the earlier ‘640 filing’s core inventive concept.
Both patents sit squarely in the commercial battleground between legacy POS hardware incumbents and cloud-first competitors. NCR Silver® — the accused product — is a flagship cloud POS offering serving small and mid-size merchants across hospitality and retail. The patents’ survival as valid assets, despite NCR’s successful noninfringement defence, means any competitor commercialising cloud POS update infrastructure or remote terminal management faces a residual enforcement risk. The case also signals that these patents have been tested to jury trial level, a data point that typically elevates their perceived licensing value.
Should your team run an FTO against US9400640 and US10083012?
Any company developing or commercialising cloud-based POS software — particularly systems that remotely build, configure, or push updates to terminal software — should treat these two patents as live FTO concerns. The Federal Circuit’s noninfringement finding was fact-specific to NCR Silver®; it does not create a blanket safe harbour for the technology category. Product teams launching SaaS POS platforms, POS middleware, or remote device management modules for retail or hospitality clients are the highest-risk audiences.
PatSnap Eureka’s FTO Search Agent can map your product’s technical features against the asserted claims of US9400640 and US10083012 — identifying which claim elements are in-scope and which design choices create clearance. Eureka’s patent landscape view also surfaces related continuation and divisional filings that may extend Cloud of Change’s claim coverage beyond these two grants, enabling your R&D and legal teams to make build-vs-design-around decisions before commercialisation.
Run a freedom-to-operate analysis on US10083012B2 to assess your product’s exposure
Run FTO in Eureka →Similar Cloud POS Software Patent Cases in W.D. Texas and Federal Circuit
Cases involving cloud-based point-of-sale software patents before Judge Albright in W.D. Texas and appealed to the Federal Circuit with comparable infringement and noninfringement outcomes.
What this case signals for the cloud POS software IP landscape
A reversed jury verdict leaves valid patents in play and resets the litigation calculus for the entire cloud point-of-sale sector.
A jury win is not a safe harbour — Federal Circuit scrutiny of JMOL is real
NCR’s ability to reverse a unanimous jury verdict on noninfringement demonstrates that district court victories in W.D. Texas are not final. Any POS vendor facing similar claims should build a Federal Circuit-ready record from day one — with expert testimony and claim charts that survive the appellate de novo standard on claim construction and legal sufficiency.
Validity was never adjudicated — both patents remain enforceable weapons
The Federal Circuit did not invalidate US9400640 or US10083012. Cloud of Change retains two issued, jury-affirmed-valid patents. Companies in the cloud POS sector — particularly those with architecture resembling NCR Silver® — should monitor Cloud of Change’s docket activity and assess their own claim exposure before a new enforcement campaign begins.
Cloud v NCR — key questions answered
The Federal Circuit reversed the district court’s denial of NCR’s JMOL motion, holding as a matter of law that NCR did not infringe the asserted claims of US9400640 or US10083012. The circuit court did not address invalidity, leaving both patents valid. The district court subsequently vacated its 2021 Final Judgment and closed the case on 19 August 2025.
Yes. The Federal Circuit’s reversal was based solely on noninfringement — the court did not disturb the jury’s finding that the asserted claims were not invalid. Both patents remain issued, valid, and potentially enforceable against third parties whose products may read on the claims under the claim construction applied or a different fact record.
Cloud of Change accused NCR Silver®, NCR Corporation’s cloud-based point-of-sale platform targeting small and mid-size merchants in retail and hospitality, of infringing claims 1, 3, 4, 5, 11, 12, and 13 of US9400640 and claims 1–4 of US10083012.
The jury trial concluded in May 2021 and Final Judgment issued in July 2021 — approximately 22 months after filing. The remaining approximately four years reflect NCR’s post-trial motions, the Federal Circuit appeal, and the mandate-compliance proceedings at the district court, which closed the case in August 2025. The appellate phase, not the trial itself, drove the overall duration.
The reversal establishes that NCR Silver®’s specific architecture did not infringe the asserted claims as a matter of law, but it does not invalidate the patents or create a safe harbour for the broader cloud POS sector. Vendors with different technical implementations should conduct independent FTO analysis against US9400640 and US10083012, as the claim scope — particularly following the Federal Circuit’s construction — may still capture other cloud-based POS build and update architectures.
PatSnap Eureka searches patents and litigation data to answer instantly.